Monday, August 11, 2014

An auto accident, and summary judgment as to liability denied.

Practice point:  To establish prima facie entitlement to judgment as a matter of law on the issue of liability, a plaintiff must demonstrate that the defendant was negligent and that the plaintiff was free of comparative fault. Here, in support of her motion, plaintiff submitted, among other things, the transcript of defendant's deposition, in which he stated that he remained in the far left traffic lane at all times prior to the collision, and that he felt the bump of the plaintiff's vehicle when it crossed over into his lane.

The Appellate Division determined that the motion court had properly concluded that plaintiff failed to eliminate a triable issue of fact as to how the accident occurred and who was at fault. The Appellate Division noted that, contrary to plaintiff's assertions, defendant's deposition testimony was not internally inconsistent on the material facts, was not inconsistent with his previously prepared accident report, and did not constitute an attempt to create a feigned issue of fact.

 Student note: In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party.

Case: Valentin v. Parisio, NY Slip Op 05423 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Waiving the right to arbitrate.